


The Ninth Circuit also relied on the D.C. Circuit’s en banc PHH decision which held that the CFPB’s structure is constitutional.  Neither PHH Corporation nor the CFPB filed a petition for certiorari asking the U.S. Supreme Court to review the D.C. Circuit’s en banc decision.  Since the Ninth and D.C. Circuits are the only circuits to have ruled on the CFPB’s constitutionality and both have held that the Bureau’s structure is constitutional, there is currently no split in the circuits that might encourage the Supreme Court to grant a petition for certiorari should one be filed by Seila Law.  (Before filing a petition for certiorari, Seila Law might seek a rehearing en banc by the Ninth Circuit.)

Two other cases involving a challenge to the CFPB’s constitutionality are currently pending in the circuit courts, either of which could create a circuit split.  On March 12, the Fifth Circuit heard oral argument in All American Check Cashing’s interlocutory appeal from the district court’s ruling upholding the CFPB’s constitutionality.  The other case is RD Legal Funding, which is pending in the Second Circuit but in which briefing has not yet been completed.  The district court in RD Legal Funding held that the CFPB’s structure is unconstitutional and struck the CFPA (Title X of Dodd-Frank) in its entirety.  Given the importance of the issue, it is possible the Supreme Court would grant certiorari if sought by Seila Law or a party in either of the two pending cases, even if no circuit split then exists.

In defending its constitutionality in these cases, the Bureau is at odds with the position of the Department of Justice.  In opposing the petition for certiorari filed by State National Bank of Big Spring (which the Supreme Court denied), DOJ argued that while it agreed with the bank that the CFPB’s structure is unconstitutional and the proper remedy would be to sever the Dodd-Frank Act’s for-cause removal provision, the case was a poor vehicle for deciding the constitutionality issue.

In addition to rejecting Seila Law’s constitutional challenge, the Ninth Circuit held that the CID did not violate the CFPA’s practice of law exclusion because it fell within the exception allowing the Bureau to exercise its authority as to an attorney where the attorney is otherwise subject to any of the enumerated consumer laws or transferred authorities.  The Ninth Circuit concluded that this exception allowed the CFPB to investigate whether Seila Law was violating the Telemarketing Sales Rule without regard to the general practice of law exclusion.  It also found that the CID contained sufficient information to put Seila Law on notice of the nature of the conduct the CFPB was investigating and was not so general as to raise vagueness or overbreadth concerns.